Wildlife First v Ministry of Environment and Forest

– by Shruti Sinha[1]

In the Supreme Court of India

NAME OF THE CASEWildlife First & Ors. v Ministry of Environment and Forest & Ors.
CITATIONWrit Petition (Civil) No. 109 of 2008
DATE OF JUDGEMENTFebruary 13, 2019
PETITIONER/APPELLATEWildlife First and Ors.
RESPONDENTMinistry of Environment and Forest and Ors.
JUDGE/BENCHJustice Arun Mishra, Justice Navin Sinha, Justice Indira Banerjee
CONSTITUTION/STATUTES INVOLVEDScheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006
IMPORTANT ARTICLES/SECTIONS INVOLVEDChapter II and III of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

ABSTRACT

Writ Petition in the nature of ‘Mandamus’ had been filed under Article 32 of the Indian Constitution before the Hon’ble Supreme Court to quash the impugned Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (hereinafter, the “Forest Rights Act” or the “FRA” or the “Act”) and the rules framed thereunder, i.e., the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2008.

INTRODUCTION

Forests are undoubtedly an essential element for the survival and sustainability of humankind and the planet. They are an important asset of a country, for the benefit of every citizen, but for some, they are the entire source of civilization and livelihood. Since ages ago, India has had its various cultures and civilizations deeply entwined with them. Hence, anything regarding the forests also affects the vast population connected with them. Forestry is the second-largest use of land in India – the source of sustenance for more than 275 million people, or almost 27 per cent of the total population.

Hence, the case of Wildlife First v Ministry of Environment and Forest[2] has been a controversial one, dealing with the Forest Rights Act, 2006, which will have a crucial impact on the future and sustainability of not only the forests but also their inhabitants. The Apex Court had given due consideration to the different perspectives and interests of everyone involved before giving its judgement, open to rectifications in this case.

FACTS

India has had a few statutes regarding the forest settlement rights ever since the British colonial period, like the Indian Forest Act, 1927, but they had hardly ever been followed to the ground, as a result of which, even after independence, the tribals and other such communities settled in the forests, had to continue living in “a precarious state of tenurial insecurity”2 because of their secluded culture.

The Government had taken cognizance of this scenario and had introduced the National Forest Policy, 1988 to regard the symbiotic relationship between the tribal people and the forest that facilitated the employment of the former as well as the management and development of the latter. Furthering on that course of action, the Government had later introduced the Forest Rights Act in 2006.

Two years later, the Wildlife First Organization, along with the Wildlife Trust of India and other such organizations and conservationists, had approached the Supreme Court to take cognizance of the unfairness that had inadvertently been caused due to the Forest Rights Act – it had been purported to facilitate deforestation and encroachment.

The FRA seeks to verify the legitimacy of the indigenous forest dwellers that had led to disputes as a major number of such people had been unable to procure the requisite evidence to prove their identity. As per the Act, such verification had been made mandatory to claim the rights to life and livelihood in the forestland. This step had been taken to ensure that the resources of the forests shall not be exploited by impostors faking the identity of the original natives, or by industrialists, rich people and the like. However, as a result, a large number of authentic tribal people may also get displaced and stranded in this predicament.

ISSUES

  1. Whether the provisions of the Forest Rights Act are constitutionally valid?
  2. Whether the States followed the due process of law in evaluating the claims for the forestland?
  3. Whether their procedure of evaluation is constitutional?
  4. Whether the FRA appropriately aligns with the well-being of the forests?

ARGUMENTS

  1. Learned Counsel on the behalf of the Petitioner had contended that the Forest Rights Act had achieved, in fact, the results opposite to what it had intended for – instead of preserving the forests and the rights of its residents, the Act had rendered them even more vulnerable.
  2. It had been submitted that the FRA had violated the Right to life “with ecological and environmental security necessary to sustain it”2 as per Article 21 as well as Article 14 of the Constitution.
  3. It had also been contended that the Parliament did not have the legislative authority to enact the FRA since the subject ‘Land’ and its tenurial rights come under the State List entry 18 of the Constitution, hence out of the purview of the Central legislation.
  4. It had been observed that the definitions of the terms mentioned in the Act like ‘other traditional forest dwellers’, ‘minor forest produce’, ‘bona fide personal use’, etc. were vague and unable to get determined, hence shall be null and void.
  5. It had also been submitted that the Act allows the sale of minor forest produce which shall lead to the exploitation and destruction of the forest for personal and commercial benefit.
  6. It had also been submitted that the FRA grants rights on not only the protected forest areas but also the reserved areas thereof i.e., the National Parks and Sanctuaries, formed under Sections 18, 26A, 25 of the Wildlife (Protection) Act, 1972, which is against Articles 48 and 51A(g).
  7. It had also been submitted by the Petitioner side that the forests are natural treasures meant for the benefit of everyone regardless of whether they reside there or not, and not to be monopolized and handed over to a certain section of people without any safeguards, which shall be violative of the Right to Equality mandated under Article 14 of the Constitution.
  8. It had also been argued that the Act shall lead to the destruction of the forests as “increased population, reduced forest area, changing cultural values, new commercial market linkages”2 had changed the current scenario and the inclusion of the non-tribal or ‘other traditional forest dwellers’, who may be socially powerful and dominant communities and not traditionally dependent on the forests at all, in the access to the forest rights shall be detrimental for both the forests and the truly primitive scheduled tribes.
  9. It had further been argued that the claims to rights cannot be precisely identified and that, they are also far excess than the sustainable carrying capacity of the forest.
  10. It had also been submitted that the adverse effects on the forest caused because of this Act shall be detrimental to not only the rare and endangered species inhabiting the forests but also the climate and ecological system of the entire planet.
  11. It had also been argued that the Central Government had transferred the subject ‘forest’ from the Ministry of Environment and Forests to the Ministry of Tribal Affairs immediately prior to the introduction of the Forest Rights Act, 2006 and this action had been arbitrary and mala fide, taken only to allow this colourable legislation. Also, since The Government of India (Transaction of Business) Rule, 1961 had allocated the business of ‘Forest’ to the Ministry of Environment and Forest, hence this change shall be null and void.
  12.  It had also been argued that the Gram Sabha, a rural authority, that had been given the responsibility to evaluate the claims to the forest rights, was incompetent and ill-equipped for the task which requires dealing with complicated questions of law, documentary evidence like maps, reports, etc.
  13. It had also been observed that the Wildlife (Protection) Act, 1972 was a special act that shall prevail over the Forest Rights Act as per the cardinal rule of interpretation of generalia specialibus non derogant[3].

RELATED PROVISIONS

CHAPTER II: FOREST RIGHTS[4]

Section 3. (1) For the purposes of this Act, the following rights, which secure individual or community tenure or both, shall be the forest rights of forest dwelling Scheduled Tribes and other traditional forest dwellers on all forest lands, namely:- (a) right to hold and live in the forest land under the individual or common occupation for habitation or for self-cultivation for livelihood by a member or members of a forest dwelling Scheduled Tribe or other traditional forest dwellers; (b) community rights such as nistar, by whatever name called, including those used in erstwhile Princely States, Zamindari or such intermediary regimes; (c) right of ownership, access to collect, use, and dispose of minor forest produce which has been traditionally collected within or outside village boundaries; (d) other community rights of uses or entitlements such as fish and other products of water bodies, grazing (both settled or transhumant) and traditional seasonal resource access of nomadic or pastoralist communities; (e) rights including community tenures of habitat and habitation for primitive tribal groups and preagricultural communities; (f) rights in or over disputes lands under any nomenclature in any State where claims are disputed; (g) rights for conversion of Pattas or leases or grants issued by any local authority or any State Government on forest lands to titles; (h) rights of settlement and conversion of all forest villages, old habitation, unsurveyed villages and other villages in forests, whether recorded, notified or not into revenue villages; (i) rights to protect, regenerate or conserve or manage any community forest resource which they have been traditionally protecting and conserving for sustainable use; (j) rights which are recognised under any State law or laws of any Autonomous District Council or Autonomous Regional Council or which are accepted as rights of tribal under any traditional or customary law of the concerned tribes of any State; (k) right of access to biodiversity and community right to intellectual property and traditional knowledge related to biodiversity and cultural diversity; (l) any other traditional right customarily enjoyed by the forest dwelling Scheduled Tribes or other traditional forest dwellers, as the case may be, which are not mentioned in clauses (a) to (k) but excluding the traditional right of hunting or trapping or extracting a part of the body of any species of wild animal; (m) right to in situ rehabilitation including alternative land in cases where the Scheduled Tribes or other traditional forest dwellers have been illegally evicted or displaced from forest land of any description without receiving their legal entitlement to rehabilitation prior to the 13th day of December, 2005.

  • Notwithstanding anything contained in the Forest (Conservation) Act, 1980, the Central Government shall provide for diversion of forest land for the following facilities managed by the Government which involve felling of trees not exceeding seventy-five trees per hectare, namely:- (a) schools; (b) dispensary or hospital; (c) anganwadis; (d) fair price shops; (e) electric and telecommunication lines; (f) tanks and other minor water bodies; (g) drinking water supply and water pipelines; (h) water or rain water harvesting structures; (i) minor irrigation canals; (j) non-conventional source of energy; (k) skill up-gradation or vocational training centers; (l) roads; and (m) community centers: Provided that such diversion of forest land shall be allowed only if, – (i) the forest land to be diverted for the purposes mentioned in this subsection is less than one hectare in each case; and (ii) the clearance of such developmental projects shall be subject to the condition that the same is recommended by the Gram Sabha.

CHAPTER III RECOGNITION, RESTORATION AND VESTING OF FOREST RIGHTS AND RELATED MATTERS4

Section 4. (1) Notwithstanding anything contained in any other law for the time being in force, and subject to the provisions of this Act, the Central Government hereby recognises and vests forest rights in – (a) the forest dwelling Scheduled Tribes in States or areas in States where they are declared as Scheduled Tribes in respect of all forest rights mentioned in section 3; (b) the other traditional forest dwellers in respect of all forest rights mentioned in section 3.

  • The forest rights recognised under this Act in critical wildlife habitats of National Parks and Sanctuaries may subsequently be modified or resettled, provided that no forest rights holders shall be resettled or have their rights in any manner affected for the purposes of creating inviolate areas for wildlife conservation except in case all the following conditions are satisfied, namely:- (a) the process of recognition and vesting of rights as specified in section 6 is complete in all the areas under consideration; (b) it has been established by the concerned agencies of the State Government, in exercise of their powers under the Wild Life (Protection) Act, 1972 that the activities or impact of the presence of holders of rights upon wild animals is sufficient to cause irreversible damage and threaten the existence of said species and their habitat; (c) the State Government has concluded that other reasonable options, such as, co-existence are not available; (d) a resettlement or alternatives package has been prepared and communicated that provides a secure livelihood for the affected individuals and communities and fulfils the requirements of such affected individuals and communities given in the relevant laws and the policy of the Central Government; (e) the free informed consent of the Gram Sabhas in the areas concerned to the proposed resettlement and to the package has been obtained in writing; (f) no resettlement shall take place until facilities and land allocation at the resettlement location are complete as per the promised package; Provided that the critical wildlife habitats from which rights holders are thus relocated for purposes of wildlife conservation shall not be subsequently diverted by the State Government or the Central Government or any other entity for other uses.
  • The recognition and vesting of forest rights under this Act to the forest dwelling Scheduled Tribes and to other traditional forest dwellers in relation to any State or Union territory in respect of forest land and their habitat shall be subject to the condition that such Scheduled Tribes or tribal communities or other traditional forest dwellers had occupied forest land before the 13th day of December, 2005.
  • A right conferred by sub-section (1) shall be heritable but not alienable or transferable and shall be registered jointly in the name of both the spouses in case of married persons and in the name of the single head in the case of a household headed by a single person and in the absence of a direct heir, the heritable right shall pass on to the next-of-kin.
  • Save as otherwise provided, no member of a forest dwelling Scheduled Tribe or other traditional forest dweller shall be evicted or removed from forest land under his occupation till the recognition and verification procedure is complete.
  • Where the forest rights recognised and vested by subsection (1) are in respect of land mentioned in clause (a) of sub-section (1) of section 3 such land shall be under the occupation of an individual or family or community on the date of commencement of this Act and shall be restricted to the area under actual occupation and shall in no case exceed an area of four hectares.
  • The forest rights shall be conferred free of all encumbrances and procedural requirements, including clearance under the Forest (Conservation) Act, 1980, requirement of paying the ‘net present value’ and ‘compensatory afforestation’ for diversion of forest land, except those specified in this Act.
  • The forest rights recognised and vested under this Act shall include the right of land to forest dwelling Scheduled Tribes and other traditional forest dwellers who can establish that they were displaced from their dwelling and cultivation without land compensation due to State development interventions, and where the land has not been used for the purpose for which it was acquired within five years of the said acquisition.

Section 5. The holders of any forest right, Gram Sabha and village level institutions in areas where there are holders of any forest right under this Act are empowered to – (a) protect the wild life, forest and biodiversity; (b) ensure that adjoining catchments area, water sources and other ecological sensitive areas are adequately protected; (c) ensure that the habitat of forest dwelling Scheduled Tribes and other traditional forest dwellers is preserved from any form of destructive practices affecting their cultural and natural heritage; (d) ensure that the decisions taken in the Gram Sabha to regulate access to community forest resources and stop any activity which adversely affects the wild animals, forest and the biodiversity are complied with.

JUDGEMENT

The Supreme Court had duly considered the Writ Petition and its consequent interlocutory applications and had issued the Order, dated 13.02.2019, directing 21 States, including Bihar, Chhattisgarh, Goa, Gujarat, Himachal Pradesh, etc., to evict the ‘forest dwelling Scheduled Tribes’ (FDSTs) and ‘other traditional forest dwellers’ (OTFDs) whose claims over the forestland had been rejected, affidavits of which had been submitted by the respective States reporting the relevant details like the extent of land, the categories of the population living there and the number of the claims thereof that had been accepted and rejected, in accordance to the terms and conditions specified in the Forest Rights Act and Rules.

Such eviction shall not only be duly monitored via satellites by the Forest Survey of India but also reported on by the Chief Secretaries and District Magistrates of the respective States and Districts in detailed affidavits, that has to be submitted within four months from the date of the Order i.e. 12.07.2019, as to why any unclaimed person may not have been evicted. This shall lead to the eviction of almost 20.5 lakh (46.5 per cent) people out of the total 44 lakh claims that had been filed. There had been varied opinions on this judgement by the Court – the major contention being that the Order had been too rigid and strict to adhere to the conditions and definitions which are vague and difficult to be determined on concrete terms.

It had been submitted, via Interlocutory Application No. 35782/2019, that the State Governments have not stated “the procedure adopted for rejection orders/claims of the Tribals”2, which authority had decided such, or whether the three-tier Monitoring Committee constituted under the FRA had supervised these aspects. In light of that, the Supreme Court, on 28.02.2019, had further ordered the reports thereof, from the Chief Secretaries of the respective States, to elucidate the grounds and procedures based on which the claims on the forestland had been evaluated, till the submission of which the previous order of 13.02.2018 regarding the eviction shall be put on hold, however, the Satellite Survey by the Forest Survey of India shall still take place as per the schedule.

CONCLUSION

The Government has the responsibility to take care of both the natural gifts as well as the humans of the land it governs. Many a time, the interests of both sides may clash because of various social, economical or scientific reasons, and in such cases, it is up to the authorities to take cognizance of the predicament and figure out the most productive and least destructive solution possible. Forests, the environment, and climate change are hot topics amidst global warming, hence its management and preservation are of utmost importance for the sustainable development of not only the country but also the whole planet. Individual efforts can only do so much till the authority steps in to make a change. When such change appears to clash against the very framework of the society it is supposed to support, then it shall be duly reviewed and rectified. Our legal system and its evolution are based on such reviews and rectifications, and the Forest Rights Act might be one such case that shall need them before it may achieve the appropriate results in the current dynamic.

[1] Author is a 1st Year Student of Government Law College, Mumbai

[2] Wildlife First & Ors. v Ministry of Environment and Forest & Ors., Writ Petition (Civil) No. 109/2008

[3] Latin maxim that means ‘the special laws shall prevail over the general laws’.

[4] Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, Act No. 02 of 2007 (India)

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